Kamunda t/a Kamunda Njue & Company Advocates v Njoka
The bottom line
#The Embu Environment and Land Court ruled that a grant ad litem holder can be personally billed by an advocate, and the fee dispute must go to taxation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the grounds raised in the Notice of Preliminary Objection dated 4th February, 2026 meet the threshold of a proper preliminary objection in law
- 2.Whether a valid Advocate/Client relationship capable of sustaining the Bill of Costs exists between the Applicant and the Respondent in his personal capacity
- 3.Whether the non-joinder of the other personal representatives of the estate renders the Bill of Costs incompetent
- 4.What orders should issue
Key legal issues
#Whether the advocate-client relationship dispute is a proper preliminary objection
The second ground, framed as an outright denial of instructions, is factual and fails the Mukisa Biscuit threshold
The parties gave conflicting accounts of file references, the roles of the Respondent and Ndung'u Mwambura Ndung'u, and whether instructions were confused or duplicated. Resolving such rival averments would require weighing evidence, so the ground is not a pure point of law and cannot be determined on a preliminary objection.
Whether a grant ad litem shields the holder from personal liability for advocate's fees
No; representative capacity does not displace the presumption of personal liability, and the indemnity is a remedy against the estate, not a shield
Relying on Adams v London Improved Motor Coach Builders, Edwin Coe LLP v Popat, O'Boyle v Wallis and Martin Tindi & Co. Advocates v Bimbita Mgalla Dzumba, the court held that a person who retains a solicitor is personally liable even where litigation is conducted in a representative capacity; the estate indemnity is the representative's remedy, not a defence to the advocate's claim.
Whether non-joinder of other personal representatives renders the Bill incompetent
No; Order 1 Rule 9 and Article 159(2)(d) preclude defeat of proceedings for non-joinder, and the question is evidentiary in any event
The Civil Procedure Rules and the Constitution enjoin the court to deal with real matters in controversy. Whether the other administrators have a surviving interest requiring joinder requires an evidentiary foundation and cannot be resolved by preliminary objection; the Respondent remains free to apply for their joinder.
Whether the 'frivolous and vexatious' characterisation is a valid preliminary objection ground
It is a conclusion, not a point of law, and adds nothing to the other grounds
The court held that characterising the application as frivolous and vexatious is a conclusion incapable of independent determination on a preliminary objection and is not sustainable as a freestanding basis.
Legal principles established
#- A grant ad litem does not immunise its holder from personal liability to an advocate retained for the suit; the holder's remedy is an indemnity from the estate
- Non-joinder of parties does not defeat a suit; it ordinarily sounds in an order for joinder
Court orders
#- 1.The Respondent's Notice of Preliminary Objection dated 4th February, 2026 is hereby dismissed
- 2.The Advocate/Client Bill of Costs dated 5th August, 2025 shall proceed to taxation before the Taxing Officer on its merits
- 3.The costs of the Preliminary Objection shall abide the outcome of the taxation
- 4.Either party shall be at liberty to apply
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 44 of the Advocates Act (taxation of advocate-client costs); Environment and Land Court jurisdiction
Relief refused
#Preliminary Objection striking out or defeating the Bill of Costs
Grounds were either blurred by contested facts or failed as pure points of law
Costs
The costs of the Preliminary Objection shall abide the outcome of the taxation.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Respondent's Notice of Preliminary Objection dated 4th February, 2026 is hereby dismissed.
The Advocate/Client Bill of Costs dated 5th August, 2025 shall proceed to taxation before the Taxing Officer on its merits.
the mere fact that the Respondent held a grant ad litem and sued in a representative capacity does not, as a matter of law, immunise him from personal liability on an Advocate/Client Bill of Costs properly drawn against him
jurisdiction is everything, and that a court or tribunal that lacks it must down its tools at the earliest opportunity
The costs of the Preliminary Objection shall abide the outcome of the taxation.
Issues in the judgment
#Coram name 'EC CHERONO, J' differs from signature block 'ENOCK CHERONO JUDGE, EMBU' (initials vs expanded name)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamunda t/a Kamunda Njue & Company Advocates v Njoka", Case Analysis (2026). Environment and Land Miscellaneous Application E024 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5760/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.